Article 7 of the Working Time Directive provides that Member states shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks and is a fundamental tenet of EU social law. This requirement is implemented in the UK by regulations 13 to 16 of the Working Time Regulations 1998 (WTR 1998) which give workers the right to take 5.6 weeks paid holiday in each leave year.

In Sobczyszyn v Szkoła Podstawowa w Rzeplinie, the European Court of Justice (ECJ) considered whether a Polish teacher who was unable to take her scheduled annual leave before the end of the holiday year due to sickness absence was entitled to carry it forward to the next holiday year.

The ECJ in its judgment referred to previous cases in reiterating that the purpose of the right to paid annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure and is different from that of the right to sick leave, which is to enable the worker to recover from an illness.

The ECJ concluded that a worker who is on sick leave during a period of previously scheduled annual leave has the right, at his request and in order that he may actually use his annual leave, to take that leave during a period which does not coincide with the period of sick leave. Therefore, any national law or practice that prohibits a worker from carrying forward their untaken holiday because they were on sick leave during their scheduled annual leave would be incompatible with Article 7 of the Working Time Directive.

Comment 

The decision serves to reaffirm the ECJ's previous decision in the factually similar case of Pereda v Madrid Movilidad. However the ECJ limited its judgment to the Claimant’s situation where scheduled annual leave could not be taken due to sickness absence as opposed to answering the rather wider question posed by the Polish court, regarding a general entitlement to carry forward untaken annual leave. That said the implication from the reasoning of the ECJ in both this case and in Pereda is that whether the leave has actually been scheduled should make no difference; if sickness prevents annual leave, workers must be able to use annual leave at a later date.